Can the relocation clause be modified if violated the restraining order?

| by Adam Denton

Last Updated on December 3, 2018

People get married because they expect to spend the rest of their lives together. But unfortunately, things don’t always turn out this way. There are a number of different reasons a couple may decide to end their marriage. Divorces can be complicated, messy affairs, especially if there are children involved. In cases involving harassment or violence, the stress multiplies tenfold. A restraining order might be necessary to protect yourself and your children. If your spouse violates this restraining order, the legal dynamic changes in many significant ways.

What are restraining orders?

Restraining orders are court orders implemented to protect one individual from another. These orders are issued in situations involving stalking, harassment, violence, or sexual assault. If your spouse has a restraining order against you and your children, they must comply with the terms outlined. They must stay a predetermined distance from you and your children.

There are certain cases where children might not be included in the restraining order. In these circumstances, your spouse will be required to maintain a distance from you, but they may still be permitted to contact your children. This is the case when the court determines that the parent poses no danger to the children. The non-custodial parent might have rights to visitation or supervised visitation.

What happens if a restraining order is violated?

If you violate a restraining order, you’ve directly disobeyed court orders. This means you’re in contempt of court. This is a criminal charge. You might receive hefty fines, and the judge may decide to imprison you for a short period of time. Before a person can be charged with violating a restraining order, though, the judge needs to see proof that a violation occurred.

How do you prove a violation?

The victim is the one who needs to provide the proof. If your spouse has violated a restraining order and contacted you or your children, you need to provide proof that the order was violated. The first thing to do is validate that a restraining order is currently in place. It’s important to establish that the order was legally issued.

The second thing you have to prove is that your spouse was aware of the order’s existence. In some cases, this is easy. If the restraining order was served personally to your spouse, the person who served it can testify that they knew about the order.

It may sound silly to need to prove these things. But there have been cases where these basic facts couldn’t be proven. One example would be a hastily-issued emergency order. If the order had just been issued, the spouse may not yet have received information about it.

The final piece you need to prove is that the restraining order was intentionally violated. The key word here is “intent.” If you can’t prove that the violation was intentional, you won’t have a case. For example, if you both accidentally crossed paths in public because your spouse didn’t realize you were there, this wouldn’t be an intentional violation.

Restraining orders are meant to protect you, but they don’t always work like they’re supposed to. Your spouse may break the order due to frustration or anger. You might feel the need to relocate for your own safety. But you should know a few things before deciding on this course of action.

What are the rules about relocation?

When a person relocates in the middle of or after a divorce settlement, there tend to be rules about that relocation. “Relocation” involves moving 50 or more miles from your original location. You also need to stay there for a minimum of 60 days. Family trips and vacations don’t count.

In every state, the relocating parent needs to give a written notice of relocation to the other parent. This notice needs to include the date of the move and location. Most states require notice to be given in advance. The other spouse has a certain period of time to object to the relocation. However, if they’ve violated the restraining order, they may not object to the relocation.

Even if your spouse objects, a judge may still approve your relocation for a number of reasons. You may be embarking on a new career, have family in the new area, or be pursuing a better education for your children. Judges will definitely take into account any restraining order violations, particularly when the order was related to violence. The judge’s job is to make the decision in the best interest of the child.